This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Reference is not infrequently made to "equitable remainders," that is, to interests of an equitable character analogous to legal remainders, as when land is given in trust for A for life and after A's death in trust for B and his heirs. Applying the analogy of a legal remainder, it would seem that as a vested legal remainder is an estate which is deprived of the right of immediate possession by the existence of another estate created by the same instrument, so a vested equitable remainder, the right of possession being in the trustees, is an equitable estate which is deprived of the right of immediate enjoyment by reason of the existence of another equitable estate created by the same instrument. This would appear to involve the acceptance of the view, before referred to,73 that a cestui que trust has an estate in the land. If he has no estate, no rights in the nature of ownership, the position of a so called equitable remainderman is in no sense analogous to that of a legal remainderman. That is, in the case of a devise in trust for A for life, and are collated and classified in a valuable note in 11 Mich. Law. Rev. at p. 474.
71. 2 Jarman, Wills, 1339 et seq; Doe d. Gorges v. Webb, 1 Taunt. 234; Allen v. Trustees of Ashley School Fund, 102 Mass.
262; Hall v. Priest, 6 Gray (Mass.) 18; Pierce v. Hakes, 23 Pa. St. 231.
72. Challis, Real Prop. 372 note; Hayes, Limitations, 138.
73. Ante Sec. 103 (b).
[ Sec. 144 after A's death in trust for B in fee simple, unless A has an equitable estate in the land, which he can assert as against A, the latter's right of enjoyment can, it would seem, be deferred till A's death only on the theory that the creator of the trust so intended, while in the case of a (vested) legal remainder, the remainderman's right of possession is deferred, not on the theory of intention, but because the right of possession is in the particular tenant.74 We find no judicial suggestions that an equitable remainder differs in this regard from a legal remainder, and we may feel considerable confidence that in their treatment of equitable remainders the courts will follow closely the analogy of legal remainders, as they have done in the signal instance of the application of the Rule in Shelley's Case.75
There are to be found occasional statements, by writers of high standing that there is, strictly speaking, no such thing as an equitable remainder, and that what is ordinarily referred to as such is rather in the nature of an executory interest.76 These statements appear to have been more particularly directed to the case of an equitable remainder expressed to be subject to a condition precedent, or in favor of unascertained persons, ordinarily referred to as a contingent equitable remainder; and, so understood, they have, it is conceived, a substantial element of correctness. As before stated,77 the expression "contingent," in connection with a legal remainder, refers merely to the contingency that, under the rules of the common law, it may never become an estate, owing to its failure to vest until after the termination of the particular estate. But it can have no such significance in connection with an equitable remainder, even though this is subject to a condition precedent, or is in favor of unascertained persons, for the reason that the non satisfaction of the condition, or the non ascertainment of the remaindermen, until after the expiration of the particular estate, does not, and never did, cause an equitable remainder to fail.78 This lack of dependence on the particular estate, which arises from the fact that the legal estate, the seisin, is continuously in the trustee, is accordingly a reason for denying to such an interest the appellation "contingent," and it clearly serves to assimilate such an interest to an executory interest, as indicated by the writers referred to. rather than to a contingent remainder, as recognized at the common law.
Go, it is applicable, it seems, only in jurisdictions where estates in fee tail still exist unchanged by statute.82
74. Ante Sec. 135 (a).
75. Post Sec. 153.
76. 1 Hayes, Conveyancing (5th Ed.) 84 note (x); 1 Jarman, Wills, (3rd Ed.) 237; 3 Davidson's
Conveyancing (3rd Ed.) 340; Marsden, Perpetuities 169, note; Gray, Perpetuities, Sec. 324; Williams. Real Prop. (21st Ed.) 416. 77. Ante Sec. 136 (a).